The other day, while I was staffing a free legal clinic, a woman came in and described her particular legal problem. She was stressed. I was thrilled because everything going wrong for this woman was actually legally convergent for a strong fact pattern to submit to a judge.
Proceed – with all due haste – before something changes.
Litigation takes longer than we would wish in many cases. Although the facts surrounding the tort may be frozen in time, our clients continue to go forward into the world every day. The trial lawyer might even do well to operate on the presumption that the facts of every client are going to change while the case is pending. So, in addition to whatever changes will go to our strategy, preparation, and presentation, a trial lawyer must be painfully aware of keeping the expert witness up-to-date on all the facts and circumstances that could impact the damages calculation.
More than one reported case has resulted in judicial criticism that the testimony of the expert witness failed to reflect the current circumstances of the parties. For example, in one case, an economics expert witness computed damages to include future care taking for the victim’s special needs child basis the life expectancy of the victim, but the special needs child had died of natural (legally unrelated) causes six months prior to trial.
One additional point comes up in cases that criticize these types of problems with the lawyer’s preparation of the expert witness and that is the sequence in which the witnesses testify. Consider what needs to be in the evidence in order for the expert witness to properly use the information, particularly in the computation of damages. Through logical sequencing of facts creating a foundation for the expert witness, if there is either a surprise during testimony or you experience an “uh-oh” moment of realize that you may not have shared an update with your expert, there may still be an opportunity to make adjustments and seamlessly present the expert testimony.
Successful submission of expert reports and expert witness testimony is not magic. It’s a result of solid, continuous communication by the trial lawyer to ensure that the expert witness is in possession of all of the facts and circumstances that could influence his opinion. Even when a case appears strong at the start, it is up to the trial lawyer, working in partnership with the expert witness, to make adjustments, as necessary, as the case progresses to verdict.
By: Paloma A. Capanna, Attorney & Policy Analyst